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Separation Agreement in Toronto


“I’ve never walked out from a court session with him disappointed…

Barry really saved my life and my son in that situation”

Divorce Lawyer Toronto

The end of a cohabitation relationship is always a significant moment in any couple’s life. Whether it is a marriage or common-law arrangement, many concerns will come up that need a resolution. In most cases, the longer the relationship, the more issues you need to deal with before you can get on with your new life. 

Contrary to what many people think, applying for a legal separation is not a thing in Ontario. There is no form to fill or site where you can register for a separation. When a married couple or common-law partners decide to end the relationship, they can simply separate.

However, if you want to formalize the terms of your separation, you may execute a separation agreement in Toronto. Because a separation agreement is a domestic contract, you could think of it as constituting a legal separation.

Although a separation agreement in Toronto is not mandatory for a separating couple, it can help ease the way. It is advisable to have one if your relationship deals with complex financial matters such as a joint business. A domestic contract is also a valuable resource if you have children together.

You and your partner can settle critical issues such as spousal support and division of property without costly litigation. A comprehensive agreement can also simplify matters for you and your divorce lawyer when the time comes.

However, it would be best to have a family lawyer draft a formal separation agreement to protect your legal rights. Family law is complex, so you need someone familiar with it to ensure it is valid and enforceable. Learn more about separation agreements to appreciate their benefits and spot their pitfalls.

What Is a Separation Agreement in Toronto?

A separation agreement in Ontario is a domestic contract subject to Part IV of the Family Law Act. It covers the legal rights and responsibilities of two cohabiting persons living “separate and apart.” That means the spouses live separately or live together but have separate rooms, meals, and money.

The separation agreement covers issues regarding the disposition of the matrimonial home, child support, parenting time, and other matters. It allows parties to take control over their own affairs and agree to terms outside of the court system.  

Because it is a legal contract, a separation agreement in Toronto has the same effect as a court order. Failing to abide by any of its terms can lead to sanctions or jail time. A separation agreement must be written down, signed by both parties, and witnessed to be enforceable. It is advisable to have a family law lawyer draft the agreement to ensure compliance.

Your divorce lawyer will tackle the same issues taken up during court proceedings. However, confronting these in court is a lengthy and expensive process. If you have a separation agreement that’s been drafted and executed properly, then you can resolve these matters out of court. So you and your partner should try your hardest to come to an agreement as it provides many advantages.

Benefits of a Separation Agreement in Toronto

A separation agreement is beneficial for a separating couple. For one, it allows them to part ways amicably, confident that their legal rights will remain intact. Moving out prematurely can make it challenging to claim child custody or take possession of the matrimonial home. So it is advisable for separating couples to continue to live together until they negotiate the terms of the separation agreement.

Most couples live a particular lifestyle when they are together, and one partner often pays for the bulk of the expenses. A separation agreement can outline the details of spousal and child support to maintain that lifestyle, including the amounts and termination dates. Such provisions create a sense of security and predictability crucial for family harmony.

A separation agreement also identifies the date of separation, which can make spousal support awarded retroactive to that date. If the paying spouse has not been paying support before the divorce, the receiving spouse can claim a lump sum accordingly. The same applies to child support orders.

Children of the marriage can also benefit. A separation agreement drafted or reviewed by an experienced family lawyer will ensure the proper care and welfare of a child. The court will always pay special attention to the terms of an agreement regarding the care and support of children. It can disregard any provision of a domestic contract that is not in the best interest of the child.

A separation agreement in Toronto is also critical in protecting your rights to assets accumulated during the marriage or cohabitation. It is a little-known fact that you have a time limit to claiming equalization of family property in Ontario.

You must claim equalization within six years after separation or two years after a divorce. In a common-law relationship, you must claim your share of pension plan credits within three years. A separation agreement can preempt that.

Finally, a separation agreement can eliminate any uncertainties over who pays for the bills and maintenance of the matrimonial home. Once you agree on the details, you can have a smooth path to a new life without your spouse or partner.

Seperation Agreement Toronto

What should a separation agreement in Toronto include?

A separation agreement is a contract, so it must comply with several statutes and rules. Section 54 of the Family Law Act details what a separation agreement should contain, specifically:

“Two persons who cohabited and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations, including,

(a)  ownership in or division of property;

(b)  support obligations;

(c)  the right to direct the education and moral training of their children;

(d)  the right to decision-making responsibility or parenting time with respect to their children; and

(e)  any other matter in the settlement of their affairs.”

Additional terms and sections may be appropriate, depending on your circumstances. The Family Law Act is not specific about the details contained in a separation agreement. However, a family lawyer will draft a document that will typically include the following:

  • Date of separation – the date in the separation agreement may be when both spouses physically separate from one another; it may also be when one party expresses the intent to end the relationship with the other party
  • Child custody and access – also known as decision-making responsibility and parenting time
  • Child support amount and termination date – follow the provisions of the Child Support Guidelines
  • Spousal support amount and termination date – often depend on equalization payment calculations
  • Disposition of matrimonial home
  • Division of shared debts
  • Disposition of pensions and retirement accounts

After thorough discussion and negotiations, the partners should put the terms of the separation in writing. The draft must then go through independent legal advice. Once they sign and have the agreement witnessed, it becomes a valid and binding contract. 


Considerations for specific issues

Generally, a separation agreement on specific issues should have the following considerations:

  • Parenting Arrangements – Children of the marriage typically have a tough time when parents separate and divorce. Parents should keep that in mind when determining who gets the decision-making responsibility and how much parenting time is beneficial.

    It would be a good idea for a separation agreement to have a parenting plan. The plan would account for the children’s holidays, schools, and extracurricular activities. It should also describe the process if one parent relocates and how it will affect the parenting time.
  • Child Support – When applicable, parents must follow child support guidelines in their province or territory. Ontario’s Child Support Guidelines provide a schedule of payments based on the paying parent’s income and the number of children. However, a separation agreement can go beyond the basic requirements of the guidelines.

    For example, the parents may agree to pay equal parts for the extraordinary expenses of the child with special needs. If both parents work, the agreement should specify who shoulders the costs of daycare and other childcare arrangements. The contract should also include the termination date for child support and the circumstances that may affect support payments.
  • Dispute Resolution – The agreement should include how to resolve any future conflicts or disputes. In most cases, it is advisable for the parties to appoint a mutually acceptable arbitrator to settle an issue when necessary.
  • Spousal Support – Depending on circumstances, one spouse may be obligated to pay spousal support during separation. A family lawyer can guide in determining the proper amount and duration of spousal support in the agreement.
    In some cases, the agreement may waive spousal support in exchange for ownership of the matrimonial home or other assets. Whatever the case, the contract will indicate the terms of spousal support and circumstances that may lead to any modifications.
  • Life Insurance: Parties may specify the beneficiaries of their life insurance in the agreement. They might agree to retain their ex-partners as beneficiaries after separation but not after the divorce.
  • Property Division: The separation agreement should detail the division of net family property. It might describe the timing and manner of equalization payment as one lump sum or in installments. In some cases, the division of property may intersect with spousal support provisions.
  • Matrimonial Home – If you plan to sell the matrimonial home, you need a formal separation agreement that details the division of the proceeds. Otherwise, the contract will specify who will live in the home and who will pay for the maintenance. The separation agreement may also stipulate the details of what happens when one party buys the other party out.

Temporary vs. Permanent Separation Agreement

The validity of a separation agreement depends on whether it is a temporary or permanent separation agreement. A temporary separation agreement is an interim contract that ends once the court grants a divorce when the judge decides to overturn the deal. It covers parenting arrangements, child support, and spousal support until such time the court order goes into effect. In many cases, the divorce decree incorporates the terms of the separation agreement. 

On the other hand, a permanent separation agreement remains in force even after divorce and may also apply to common-law partners. However, a family court judge in Ontario may refuse to recognize it. When this happens, the separation agreement becomes unenforceable.

Can a Separation Agreement Be Set Aside?

The purpose of a separation agreement is for partners to create certainty on how their lives will proceed once they’re apart. However, the parties can apply to have any part of an agreement set aside by the court at any time. 

Section 56(4) of the Family Law Act states that a court may set aside a separation agreement or any domestic contract in the following instances:

Failure to adequately disclose assets, debts, or other liabilities

When negotiating your separation agreement in Toronto, it is essential to disclose all your financial assets and liabilities. The financial disclosure relates directly to the fair division of property accumulated during the relationship. It will also affect spousal support and child support. Failing to disclose everything can nullify the contract and all its terms.

The court will question a separation agreement that favours one party much more than the other. To avoid wasting your time and your partner’s, you need to provide accurate and updated financial information. You should also provide a list of all the information you provided and an acknowledgment receipt. That way, your partner cannot claim later that they did not receive it.


Lack of understanding of the separation agreement

It might seem unfair that your partner can apply to set aside your separation agreement by claiming a lack of understanding of what they signed. However, it is possible that one party may feel rushed, confused, or pressured to sign an agreement without fully understanding its implications or consequences. The court frowns on any hint of coercion or unfairness. The lack of understanding can be grounds for overturning the contract at a crucial time, such as enforcing support obligations.

You can avoid that by getting a Certificate of Independent Legal Advice. The certificate means both parties to the agreement had the opportunity to review the Separation Agreement with separate lawyers. Furthermore, it means the lawyers clarified the nature and consequences of that agreement.

Not following the law

You and your partner can certainly refer to your inclinations of what’s fair in your separation agreement. However, all domestic contracts fall under Ontario’s family laws and regulations.

You cannot simply ignore the letter of the law. The terms of your separation agreement in Toronto must be in accordance with these rules to be valid and enforceable. These include support obligations, decision-making responsibilities, and parenting time.

Family courts in Ontario pay special attention to the care and support of children of a marriage or common-law partnership. The terms of a separation agreement regarding children should pass the best interest of the child test embodied in the Family Law Act. It should also comply with the minimum amounts in the Child Support Guidelines.

Failure to pass the test or follow the guidelines is grounds for overturning a separation agreement. The court will have the final decision in this case. Your best move to avoid it is to have a family law lawyer draft and review the agreement.

Did you know?

“You can apply for divorce after one year of separation in Ontario. However, suppose there are children of the marriage. In that case, you can only get a divorce if the judge believes you have made reasonable child support arrangements.”

Why Choose Nussbaum Law for a Separation Agreement Toronto?

The dissolution of a marriage or long-term common-law relationship can be complicated. Even when partners agree on the terms of separation, there is no guarantee that it will not change in the future. A verbal or informal agreement does not provide any security. A separation agreement in Toronto can help you resolve any issues you may have before appearing at family court.

A separating couple does not need to go to court to enter a legally binding separation agreement. The good news is you might save a significant amount of money as litigation costs are high. The bad news is that improper drafting of a separate agreement can lead to legal issues later. You can avoid any costly mistakes by consulting with an experienced family lawyer.

Nussbaum Family Law family lawyers have years of experience drafting domestic contracts that stand up in court. We can help you draw, review, and enter into separation agreements in Ontario with confidence.

Our Toronto separation lawyers can assist with both package and individual legal services. We can help you reach a solution in your best interests and within your budget. We have clients in Toronto, North York, Mississauga, Newmarket, Markham, and other areas in Ontario.

If you need a reliable and experienced family law firm to draw up domestic contracts to protect your rights, contact Nussbaum Law. Contact us to get a free consultation about your case. We have your back.

The inadequate disclosure of assets and liabilities is a primary reason that separation agreements are set aside. Avoid the stress and expense of going to court. Work with the experienced Nussbaum Law family lawyers to draft your separation agreement in Toronto.

FAQs on Separation Agreements in Toronto

Is a separation agreement necessary in Ontario?

No, separating couples in Ontario do not need a separation agreement to make their separation valid in case of divorce. However, a formal separation agreement makes any arrangements between partners enforceable. It also speeds up the divorce process by establishing many critical issues such as support obligations and child care.

Can you change the terms of spousal support?

Yes. A party may apply to modify spousal support provisions (or lack thereof)  if it passes the Miglin test. The test refers to the Supreme Court case Miglin v. Miglin, which established what circumstances might justify changing spousal support provisions. The test applies to domestic contracts, including separation agreements.

What is reconciliation in separation agreements?

Married couples seeking divorce must live “separate and apart” for one year, except for domestic abuse or infidelity. A separation agreement can establish the date of separation for that purpose.

However, most family lawyers will include a reconciliation clause in separation agreements. It states the deal is valid if the parties live together for fewer than 90 days within one year. However, the contract is void if the cohabitation is more than 90 days. Any property transfers or conveyances executed as part of the agreement remains valid.

Did You Know

Most abusers’ behaviour stems from feelings of privilege and entitlement and learned attitudes.

These can be extremely challenging to change. They must be deeply committed to making lasting changes to their behaviour. 

Published On:June 30, 2022